SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6252-94T3
DELISHA KEMP, a minor, by her
parent and natural guardian,
DEBRA WRIGHT and DEBRA WRIGHT in
her own right,
Plaintiffs-Respondents,
v.
STATE OF NEW JERSEY, COUNTY OF
BURLINGTON, RIVERSIDE BOARD OF
EDUCATION, and RIVERSIDE HIGH SCHOOL,
Defendants-Appellants.
________________________________________________
Argued December 11, 1995 - Decided January
17, 1996
Before Judges Havey, Conley and Braithwaite.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County.
Thomas E. Doig, Jr., Deputy Attorney General,
argued the cause for appellant State of New
Jersey (Deborah T. Poritz, Attorney General,
attorney; Joseph L. Yannotti, Assistant
Attorney General, of counsel; Mr. Doig, on
the brief).
Timothy E. Annin argued the cause for
appellant County of Burlington (Capehart &
Scatchard, P.A., attorneys; Mr. Annin, of
counsel; Alison M. Nissen, on the brief).
Frank G. Basile argued the cause for
appellants Riverside Board of Education and
Riverside High School (Basile & Testa,
attorneys; Mr. Basile, on the brief).
David K. Cuneo argued the cause for
respondents (David K. Cuneo, attorney; Mr.
Cuneo, on the brief).
The opinion of the court was delivered by
CONLEY, J.A.D.
Plaintiff Debra Wright (hereinafter referred to as plaintiff), then a high school senior, received a rubella vaccination on April 18, 1975, through a free public vaccination clinic instituted and supervised by defendants and jointly operated by the State and Burlington County's Health Department in response to a measles outbreak. Her daughter, plaintiff Delisha Kemp, was born approximately eight months later with congenital rubella syndrome. It is undisputed that rubella vaccination is contraindicated for females who are pregnant. Defendants concede that at the time of the vaccination clinic, the vaccine was not administered to any female suspected of being sexually active. The initial screening examination of each participant included inquiry as to their sexual activity. In her personal injury lawsuit on behalf of herself and her daughter, plaintiff contends that defendants were negligent in conducting this examination by failing to ascertain her pregnancy before giving her the vaccination. She also contends that she was not warned during the examination that a child conceived within three months of vaccination could suffer severe mental and physical defects. Defendants, all public entities, moved for summary judgment on several grounds, including the immunities under N.J.S.A. 59:6-4 and N.J.S.A. 26:11-2 (now repealed).See footnote 1 As to all
defendants, the motion judge denied summary judgment on the
immunity issues. We granted leave to appeal and now reverse.See footnote 2
We first consider N.J.S.A. 59:6-4 which states:
Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others. For the purposes of this section, "public employee" includes a private physician while actually performing professional services for a public entity as a volunteer without compensation.
[Emphasis added].
Putting aside the exception for examinations conducted "for the
purpose of treatment," N.J.S.A. 59:6-4 applies to examinations
conducted "for the purpose of determining whether [the person
examined] has a disease or physical or mental condition that
would constitute a hazard to the health or safety of himself or
others." See for example Delbridge v. Schaeffer,
238 N.J. Super. 323, 364-66 (Law Div. 1989) (the immunity in N.J.S.A. 59:6-4
protected a DYFS physician whose examination of subsequently
abused child's father was alleged to have been negligent).
From one perspective, the rubella vaccination clinic, which
included a preliminary examination of each person vaccinated,
does not fit precisely within the scope of a public health
examination to determine "whether [the person examined] has a
disease or physical or mental condition" that would constitute a
health hazard. The clinic itself was to vaccinate against
measles, not to determine whether the participants had measles.
And, thus, the trial judge initially concluded that N.J.S.A.
59:6-4 did not apply to the rubella vaccination clinic.
On the other hand, plaintiff's suit focuses upon the
failures and/or inadequacies of the screening examination
conducted of each person to be vaccinated. It appears undisputed
that one of the purposes of the examination was to ascertain the
sexual activity of the female participants so that the vaccine
would not be given to a person who might be at a high risk of
harm arising therefrom. The "examination," thus, was a
prevaccination interview of each student. Viewed from this
perspective, that examination was, indeed, designed to ascertain
whether the person being examined had a physical condition, i.e.,
potential pregnancy, that would constitute a hazard to her and
her unborn child in the event she was vaccinated. Compare Sava
v. Fuller,
249 Cal. App.2d 281, 292,
57 Cal. Rptr. 312 (Ct. App.
1967) (Cal. Gov't Code §855.6, California's counterpart to
N.J.S.A. 59:6-4, did not apply to examination by State biologist
of a plant that might have been ingested by a child at the
request of child's doctor and to aid in his diagnosis and
treatment of the child) with Lucas v. City Long Beach,
60 Cal.
App.3d 341, 350,
131 Cal. Rptr. 470 (Ct. App. 1976) (Cal. Gov't
Code §855.6 provided immunity to a prison official who failed to
obtain a medical examination of an intoxicated prisoner who later
committed suicide) and Kravitz v. State of California,
8 Cal.
App.3d 301, 306,
87 Cal. Rptr. 352 (Ct. App. 1970) (Cal. Gov't
Code §855.6 provided immunity to staff of state hospital for its
inadequate examination of a person committed as criminally insane
and leading to his release).
We consider as well the Comment to N.J.S.A. 59:6-4 that
describes the immunity as pertaining not only to the failure to
perform adequate "public health examinations, such as [public]
tuberculosis ... examinations," but also the failure to perform
adequate "physical examinations to determine the qualifications
of boxers and other athletes, and eye examinations for vehicle
operator applicants." See also Senate Labor, Industry and
Professions Committee Statement, No. 524.
The screening examination here was not to determine whether
the participants in the vaccination clinic had measles. As we
have said, it does not, thus, neatly fit within the "public
tuberculosis examination" example set forth in the Comment. But
because its scope was to ascertain whether there were any
disqualifying conditions for the vaccination, it is comparable to
eye examinations for drivers or physical examinations for
athletes before they compete. We conclude, therefore, that the
examination here which plaintiff alleges was inadequate falls
within the scope of the immunity provided by N.J.S.A. 59:6-4.
We next consider whether, nonetheless, the exception
contained therein precludes reliance upon the immunity, as the
trial judge concluded. That exception applies to an examination
that is conducted "for the purpose of treatment." Was the
initial prequalifying examination "for the purpose of treatment?"
We are not aided by any precedent in this State. Neither are we
particularly helped by California precedent. E.g., Kleinke v.
Ocean City,
147 N.J. Super. 575, 579 (App. Div. 1977). As far as
we can tell only one case in California has treated the issue,
albeit in the context of whether an AIDS blood test conducted by
a medical center employee qualifies as an "examination or
diagnosis for the purpose of treatment." Smith v. County of
Kern,
20 Cal. App. 4th 1826, 1833,
25 Cal. Rptr.2d 716, 721
(1993), review denied (1994). Smith did not resolve that issue
on the merits. See id. at 1835, 25 Cal. Rptr.
2d at 723
(allowing plaintiff to file an amended complaint alleging
negligent performance by medical personnel in taking blood test
for the purpose of assisting patient examination or diagnosis).
Smith did, however, frame the pertinent inquiry as "whether the
public employee's actions were taken to facilitate the delivery
of medical diagnosis or care to the individual who is injured by
the employee's activities." Ibid. If they are, the exception is
triggered and the immunity does not apply. This is consistent
with the observation in the Comment to N.J.S.A. 59:6-4 that the
immunity was not intended to apply to "examinations for the
purpose of treatment such as are ordinarily made in doctors'
offices and public hospitals." And see Senate Labor, Industry
and Professions Committee Statement, supra.
The plain meaning of "treatment," see e.g., Chase Manhatten
Bank v. Josephson,
135 N.J. 209, 225 (1994), might support a
conclusion that the examination here falls within the exception.
See Webster's Third New International Dictionary Unabridged 2435
(3d Ed. 1981) (defining "to treat" as: "to care for (as a
patient or part of the body) medically or surgically: deal with
by medical or surgical means . . . to seek cure or relief of (as
a disease). . . .); Black's Law Dictionary 1502 (6th ed. 1990)
(defining "treatment" as: [a] broad term covering all steps taken
to effect a cure of an injury or disease; including examination
and diagnosis as well as application of remedies"); Stedman's
Medical Dictionary-Fifth Unabridged Lawyers' Edition 1477 (5th
ed. 1982) (defining "treatment" as "medical or surgical
management of a patient"). "Treatment," in its medical sense,
encompasses preventive or prophylactic efforts, which means: "the
institution of measures designed to protect a person from an
attack of a disease to which he has been, or is liable to be
exposed." Stedman's, supra 1477.
Applying these definitions, the rubella vaccination program
could be said to fall within the parameters of "treatment."
"Treatment," as it has been defined, includes preventive
measures, and is not limited solely to alleviating preexisting
conditions. And see Calabrese v. Trenton State College,
162 N.J.
Super. 145, 156 (App. Div. 1978), aff'd,
82 N.J. 321 (1980)
(stating that "administration of a given drug" is a treatment in
medical malpractice action where plaintiff alleged failure to
warn of known dangers associated with anti-rabies vaccine); Boyd
v. Louisiana Medical Mut. Ins. Co.,
593 So.2d 427, 428-29 (La.
Ct. App. 1991), writ denied,
594 So.2d 877 (La. 1992)
(considering oral polio vaccine as medical treatment for purposes
of determining whether physician adequately disclosed risks of
treatment as required by state informed consent statute); In re
Christine M.,
595 N.Y.S.2d 606, 613 (N.Y. Fam. Ct. 1992) (finding
that parents' failure to inoculate children against measles was
deprivation of treatment rising to the level of "medical neglect"
under Family Court Act); People, on Complaint of Burke, v.
Steinberg,
73 N.Y.S.2d 475, 477 (N.Y. Mag. Ct. 1947) (concluding
that vaccination against smallpox is "treatment" of a human being
under statute defining practice of medicine).
But, though plain meaning interpretations are generally
favored, we do not strictly adhere to a literal meaning in all
cases. If enforcement of a statute's plain meaning yields
results that are wholly "inconsistent with the statutory scheme,"
that interpretation must be rejected. Chase Manhattan Bank v.
Josephson, supra, 135 N.J. at 225. We are convinced that is the
case here. Primarily based upon our analysis of the Comment to
N.J.S.A. 59:6-4 and the Senate Labor, Industry and Professions
Committee Statement, we are convinced that the exception was not
intended to apply to all examinations that might be characterized
as conducted for some form of treatment. Rather, within that
somewhat broad category, we think the Legislature intended to
exclude from immunity the type of medical examinations that we
normally associate with treatment and care provided by doctors
and hospitals - the ordinary provision of care. Simply put, in
our view, the public health measles immunization clinic was not
that type of ordinary medical care, and the examination conducted
pursuant thereto does not fall within the exception.
At the time of plaintiff's vaccination, N.J.S.A. 26:11-12 immunized the actions or inactions of county health boards, their members and their agents, who were responsible for preventing the spread of contagious disease. It provided:
No member, officer or agent of a county board shall be sued or held liable for any act done or omitted in good faith and with ordinary discretion on behalf of or under the county board of pursuant to its rules or ordinances.
There is no dispute but that the rubella vaccination program
would fall within the scope of this statute where the actions or
inactions in connection therewith were "in good faith and with
ordinary discretion."See footnote 3
The statute, however, was repealed in 1976, N.J.S.A. 26:11-12, repealed by Local Health Services Act, L. 1975, c. 329, §21,
several months after the birth of plaintiff's daughter.
Preliminarily, plaintiff contends that, in fact, the 1972 Tort
Claims Act repealed N.J.S.A. 26:11-12. The Tort Claims Act was
expressly prospective in effect, applying to causes of action
that occurred subsequent thereto. N.J.S.A. 59:12-3. "All acts
and parts of acts inconsistent ... to the extent of such
inconsistency ..." were expressly repealed, "including without
limitation: P.L. 1971, c. 199, §26 (C. 40A:12-26); N.J.S.
18A:20-35; N.J.S. 38A:4-9, N.J.S. 38A:4-10; R.S. 53:1-2."
N.J.S.A. 59:12-2.
N.J.S.A. 26:11-12 was not expressly repealed. Although
plaintiff contends that it was impliedly so repealed, implied
repealers are disfavored. E.g., N.J. State Policemen's
Benevolent Ass'n of N.J. v. Town of Morristown,
65 N.J. 160, 164
(1974). Moreover, we do not view the immunity in N.J.S.A. 26:11-12 as inconsistent with the Tort Claims Act. Indeed, the
immunity provided in N.J.S.A. 26:11-12 is consistent with that in
N.J.S.A. 59:6-3 and N.J.S.A. 59:6-4.
We recognize that, subsequently, the Legislature did repeal
N.J.S.A. 26:11-12. N.J.S.A. 26:11-12, repealed by Local Health
Service Act, L. 1975, c. 329, §21. Legislative history in
connection therewith is not helpful in explaining why. It may
simply be that the Legislature perceived that the immunity in
N.J.S.A. 26:11-12 was otherwise provided by the Tort Claims Act
and, therefore, redundant.
Furthermore, as plainly explained in the Comment to N.J.S.A.
59:2-1, "the basic statutory approach of the New Jersey Tort
Claims Act shall be that immunity of all governmental bodies in
New Jersey is reestablished." The Comment to Subsection (b) of
that statute added: "Subsection (b) is intended to insure that
any immunity provisions provided in the act or by common law will
prevail over the liability provisions. It is anticipated that
the courts will realistically interpret both the statutory and
common law immunities in order to effectuate their intended
scope." And see N.J.S.A. 59:1-2, 2-1(b). The law is, moreover,
well established that "immunity is the dominant theme of the Act"
and, accordingly, where immunity applies, no liability exists.
E.g., Weiss v. New Jersey Transit,
128 N.J. 376, 383-83 (1992);
Birchwood Lakes Colony Club v. Medford Lakes, Inc.,
90 N.J. 582,
596 (1982). We, therefore, reject plaintiff's argument that
N.J.S.A. 26:11-12 was impliedly repealed in 1972 by the Tort
Claims Act.
The issue then becomes whether its repeal in 1976 now
permits plaintiff to sue defendants despite the fact that the
actions or inactions she complains of in her complaint were
immunized at the time of her vaccination and at the time of the
birth of the infant plaintiff, both of which occurred in 1975 and
prior to the repeal. That issue implicates two somewhat
conflicting principles of statutory construction. On the one
hand, it has been generally said that a court is to apply the law
in effect at the time that it renders its decision. Phillips v.
Curiale,
128 N.J. 608, 615-16 (1992); Parsippany Hills Ass'n v.
Rent Leveling Bd. of Parsippany-Troy Hills Tp.,
194 N.J. Super. 34 (App. Div.), certif. denied,
97 N.J. 643 (1984). Where the
matter involves the creation of a cause of action that did not
exist at the time of the underlying action or conduct that forms
the basis for the cause of action, application of this general
proposition would, effectively, result in a retroactive
application of the new law.
Retroactive application of changes in the law, on the other
hand, are not generally favored. Phillips v. Curiale, supra, 128
N.J. at 615; Gibbons v. Gibbons,
86 N.J. 515, 521 (1981). "It is
a fundamental principle of jurisprudence that retroactive
application of new laws is usually unfair. There is a general
consensus that notice or warning of the rule should be given in
advance of the actions whose effects are to be judged. The
hackneyed maxim that everyone is held to know the law, itself a
principle of dubious wisdom, nevertheless presupposes that the
law is at least susceptible of being known. But this is not
possible concerning law that has yet to exist." 2 Sutherland,
Statutory Construction, §41.02 at 340 (5th ed. 1992).
These two, ostensibly discordant, principles recently
prompted Justice O'Hern in writing the majority opinion in
Phillips to comment upon the "tension" created thereby, 128 N.J.
at 616, and prompted Justice Clifford, somewhat bluntly, to
dissent "[o]nly from so much of the Court's otherwise
straightforward and eminently sensible opinion as attempts to
come to grips with the slippery doctrine of retroactivity,"
128 N.J. 630, and, in doing so, to view retroactivity as having
"nothing to do with this case":
The problem is not one of applying today's
legislation to cases that antedate the
effective date of the legislation [which in
fact it was]; rather the question is whether
by the every terms of its enactment, the
Legislature itself applied the legislation to
a given situation - here, plaintiff's case.
I would not muddy the waters of the already -murky waters of retroactivity analysis.
[128 N.J. at 630, Clifford, J. dissenting].
But whether the effect of the 1976 repeal of the immunity
provided in N.J.S.A. 26:11-12 is analyzed under the general
proposition concerning application of the law at the time of
decision (a proposition that here would result in plaintiff and
the infant plaintiff being accorded a cause of action where they
had none in 1975), or analyzed under the proposition that new
laws are generally applied prospectively (resulting here in
defendants' right to rely upon the substantive law in effect at
the time of their actions in 1975), we think the same result is
required under either maxim.
First, the principle that it is the law in effect at the
time of decision that applies, arises when the law changes during
the pendency of an action. It is a principle that does not apply
to completed matters. The causes of action here were not pending
at the time N.J.S.A. 26:11-12 was repealed; indeed, as we will
further articulate, there was no cause of action at that time.
It may well, thus, be argued that the underlying transaction,
i.e., the vaccination and alleged negligent examination, could be
compared to a closed matter. Moreover, the principle is not
applicable where its application would result in manifest
injustice or where there is a statutory directive or legislative
history to the contrary. Phillips v. Curiale, supra, 128 N.J. at
616.See footnote 4 And see Strube v. Travelers Indem. Co. of Ill.,
277 N.J.
Super. 236 (App. Div. 1994), aff'd o.b., _____ N.J. _____ (1995).
Although there is no direct legislative history here, the
general legislative intent with respect to immunities for public
entities as expressed in its enactment of the Tort Claims Act and
as we have previously set forth, is to preserve such immunity.
The Tort Claims Act was, principally, designed to limit
negligence and tort claims against public entities, not broaden
them; it was, thus, expressly implemented prospectively. See
N.J.S.A. 59:1-2; N.J.S.A. 59:2-1(a). And see Perillo v. Dreher,
126 N.J. Super. 264, 269 (App. Div.), certif. denied,
64 N.J. 512
(1974).
Further, we are of the view that it well could be said that
manifest injustice to the public bodies, as well as the
ultimately responsible taxpayers, would result should the
subsequent repeal be viewed as abrogating the immunity at the
time the determination to provide the free vaccinations was made
and implemented. Simply said, had the public entities not been
protected by the immunity at that time, the risks of the
vaccination may well have been viewed as sufficient to override
the potential health benefits and may have, consequently,
precluded the provision of the vaccination. The potential
absence of liability insurance in reliance upon the immunity may
also be critical. See Payton v. Abbott Labs,
386 Mass. 540, 566,
437 N.E.2d 171, 186 (Mass. 1981).
We would venture to say, further, that while what occurred
to plaintiff and her child has been devastating to them, the
overall benefit to those who were vaccinated without incident, as
well as to the general public, was substantial. These
considerations would counsel against application of the general
principle of applying the existing law at the time of decision.
And see Darrow v. Hanover Township,
58 N.J. 410, 415-20 (1971)
(abrogation of interspousal immunity by Immer v. Risko,
56 N.J. 482 (1970), is prospective, applying to causes of action arising
after Immer).
An analysis of the prospective/retroactive principles leads
as well to a conclusion that the 1976 repeal should not be
applied retroactively to change the law existing at the time of
the occurrence of the conduct that forms the basis of the causes
of action here occurred. As we have said, generally prospective
application of new laws is favored. There are, however, three
circumstances where retroactive application of a statute may be
justified. Phillips v. Curiale, supra, 128 N.J. at 617-18;
Gibbons v. Gibbons, supra, 86 N.J. at 522. Retroactive
application is desirable, first, where legislative intent
expressly or impliedly indicates so. Gibbons, supra, 86 N.J. at
522. A statute may be applied retroactively, second, if it is
ameliorative or curative in nature. Id. at 523. Third,
fulfillment of the parties' reasonable expectations may require a
statute's retroactive application. Ibid.; see 2, Sutherland,
supra, §41.05 at 366 (stating that principles of fundamental
fairness dictate that "settled expectations honestly arrived at
with respect to substantial interests ought not to be
defeated.").
As we have said, the Legislature neither expressly nor
impliedly intended the repeal of N.J.S.A. 26:11-12 to apply
retroactively such that new causes of action would exist where
none did at the time of the disputed action. Further, we do not
perceive the repeal of N.J.S.A. 26:11-12 as being either curative
or ameliorative; it may simply have reflected the Legislature's
assumption that the immunity was contained in the Tort Claims
Act, or it may have been an oversight. There is no indication
that N.J.S.A. 26:11-12 was repealed to cure a perceived harm.
Neither are there any reasonable expectations of the parties
involved that require retroactive repeal.
Furthermore, we consider the issue within the context of our
Supreme Court's recognition that a statute should not be given
retroactive effect without considering:
whether the affected party relied, to his or
her prejudice, on the law that is now to be
changed as a result of the retroactive
application of the statute, and whether the
consequences of this reliance are so
deleterious and irrevocable that it would be
unfair to apply the statute retroactively.
[Gibbons v. Gibbons, supra, 86 N.J. at 523-24].
An example of this concern is reflected by Willis v.
Department of Conservation & Economic Dev.,
55 N.J. 534 (1970),
in which, mindful of the repercussions to governmental entities
which would be generated by a retroactive application of its
abolition of sovereign immunity, the Court applied its decision
prospectively, except as to the plaintiff therein. Anticipating
the enhanced burdens on the government stemming from its
decision, the Court noted:
There are no appropriations to pay the
obligations the courts might declare, nor
even, perhaps, to handle the caseload which
may ensue. The executive branch will need
time to prepare for the additional burden.
Then, too, the Legislature may wish to
require timely notice of claims to permit an
opportunity to investigate. Or the
Legislature may choose to fix a monetary
limit on recoveries, or to exclude some
category of damages, or to adopt a concept of
liability different from that of the common
law, or to entrust the whole matter to an
administrative agency.
[Id. at 541].
And see Perillo v. Dreher, supra, 126 N.J. Super. at 269.
Indeed, the Legislature so agreed. N.J.S.A. 59:12-3. Cf. Darrow
v. Hanover Township, supra, 58 N.J. at 415-20.
A statute that changes settled law and is substantive in
nature is applied prospectively unless otherwise provided by the
Legislature. Thomas v. Romeis,
234 N.J. Super. 364, 374 (App.
Div. 1989). We view the repeal of N.J.S.A. 26:11-12 to be such a
change of settled and substantive law, without legislative
expression of retroactive application.
Plaintiff contends that our decision in Small v. Department
of Corrections,
243 N.J. Super. 439, 441 (App. Div. 1990), is to
the contrary. We do not think so. In Small, we considered the
trial court's dismissal of a prisoner's personal injury complaint
under the Tort Claims Act. The dismissal was based upon
plaintiff's failure to file a notice of claim within ninety days
of the accident and to file a complaint within two years thereof,
as prescribed by N.J.S.A. 59:8-8. At the time of the plaintiff's
accident, N.J.S.A. 59:5-3 precluded prisoners from commencing
suits against public entities or public employees until their
release from confinement and, thus, the plaintiff did not comply
with the time provisions of N.J.S.A. 59:8-8. Effective in 1988,
less than five months before plaintiff filed his complaint, but
well beyond plaintiff's October 1986 accident, the Legislature
repealed 59:5-3. In dismissing plaintiff's complaint, the trial
judge rejected the argument that plaintiff's failure to comply
with the notice provisions of N.J.S.A. 59:8-8 was excused by
N.J.S.A. 59:5-3 which was later repealed. In effect, the trial
judge applied the repeal retroactively and imposed the time
requirements of 59:8-8 even though they were not effective at the
time of the accrual of plaintiff's cause of action. In
reversing, we concluded that plaintiff had, in any event,
substantially complied with the notice provisions of N.J.S.A.
59:8-8. And although he had not filed his complaint within two
years after the accident, we declined to apply the repeal
retroactively to the date of his accident. In dicta, we said
"when a statute restrains a right and the statute is then
repealed, the right is restored as of the date the repealer
statute is enacted." Id. at 448-49.
We do not think Small requires the result reached by the
trial judge here. First, we rejected the trial judge's
retroactive application of the statutory repeal, a result
consistent with our determination here. Second, we are not
dealing here with a statute that merely restrained a cause of
action. See Rosenberg v. North Bergen,
61 N.J. 190, 199 (1972).
To put it another way, plaintiff's right to sue was not merely
postponed by N.J.S.A. 26:11-12; rather, it was barred, as a
result of which plaintiff had no cause of action at the time it
might have accrued.
Simply put, we see no basis for applying the repeal of
N.J.S.A. 26:11-12 retroactively to create a cause of action when
none existed in 1975. Imposition of liability on defendants for
conduct that was immunized at the time they acted defeats both
their reasonable expectations and reliance interests. See Willis
v. Department of Conservation & Economic Dev., supra, 55 N.J. at
541. To find otherwise could expose public entities to potential
liability for actions taken many years before at a time when all
parties understood that immunity applied.
Reversed.
Footnote: 1 Defendants had previously moved for summary judgment under N.J.S.A. 59:6-3 which immunizes public entities and employees from "an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by
preventing disease or controlling the communication of disease within the community." Defendants did not seek leave to appeal the denial of their motions for summary judgment thereunder and we express no view thereon. Footnote: 2 In ruling on defendants' motions, the trial judge addressed various other issues aside from the statutory immunities. We granted leave only as to the denial of immunity under N.J.S.A. 59:6-4 and N.J.S.A. 26:11-2. We do not address any other issues. Footnote: 3 We do not view "ordinary discretion" as distinct from "good faith". Plaintiff conceded during argument before the trial judge, as well as during oral argument before us, that there are no disputes of facts to raise an issue of bad faith. There appears to be no argument, moreover, that N.J.S.A. 26:11-12 does not apply to all three defendants in their involvement in the vaccination program. Certainly it does as to defendant County Board. It is asserted that the State and Board of Education defendants were acting as agents of the County Board. Plaintiff does not appear to contend to the contrary and we, therefore, assume that to be so. In any event, N.J.S.A. 59:6-4 provides absolute immunity to all defendants. Footnote: 4 It has also been observed that the principle will not apply where "vested rights" are involved. Parsippany Hills Ass'n v. Rent Leveling Bd. of the Township of Parsippany-Troy Hills, supra, 194 N.J. Super. at 43. Such a right has been characterized as a "present fixed interest which in right reason and natural justice should be protected against arbitrary state action - an innately just and imperative right that an enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny." Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 384-85 (1954).